Thursday, March 16, 2017

Trump’s sleight-of-hand attempt to
disguise his pandering to bigotry, by banning visitors from nations that are
90-99% Muslim, has failed…again. Another Steph Curry-like three-pointer for the
Founding Fathers, creating an independent judiciary, a nation grounded in the
Rule of Law. As Thomas Jefferson said in the Statute of Virginia for Religious
Freedom (which led to the Bill of Rights),"our
civil rights have no dependence on our religious opinions any more than our
opinions in physics or geometry...." Executive
Order No. 13,780 (aka the Muslim Ban): Temporarily Restrained.

Judge Derrick K. Watson: yesterday
you occupied just one of 678 district court judgeships authorized by Article
III of the Constitution, sitting in one of our most geographically isolated and
one of our smallest states, in the District of Hawaii. Today you are a hero,
the giant to protect that Constitution against a would-be tyrant, striking down
the repackaged Muslim Ban in a strongly-written opinion (read it: here).

“The Government’s premise is not true,” Judge
Watson wrote. How often will we hear these words during the Trump presidency,
as he tries to sell us the moon, saying it is really the sun? The Constitution
and Bill of Rights that protect, among other things, religious freedom, and
prevent establishment of a state-favored religion in the United States (The
Establishment Clause), are not a game, Mr. Trump. This is not like real estate –
where to bolster your ego you can apparently pretend a 58-story building has 68 stories, as Trump has for decades.

"The illogic of the Government's contentions is
palpable," Judge Watson said, as Trump’s minions dissembled. The
Ban’s apologists tried to say that terrorism would increase by continuing to
allow in people from six Muslim countries, based upon two examples: an Iraqi,
and a Somalian native who came as a child and later became a citizen. The
repackaged ban omits Iraq, and allows an exception for such children. So, your
Ban would do nothing worth doing, but would only fan the flames of nationalism
at home, and throw gasoline on the fires of anti-American animus abroad.

Brave Imam, Ismail Elshikh,
Ph.D., who stood up for his family, and all Muslims, and for democracy in
America, explaining how these shenanigans would keep his mother-in-law, a
Syrian national, from visiting, how saddened he and his family have been by the
message of the Trump administration, that “the United States—their own
country—would discriminate against individuals who are of the same ethnicity as
them, including members of their own family, and who hold the same religious
beliefs.” Dr. Elshikh’s children “do not fully understand why this is
happening, but they feel hurt, confused, and sad.”

Perhaps the
best part of the Court’s decision was that it held Trump accountable for all
his bigoted campaign statements, when he telegraphed exactly what he intended
with this Muslim Ban. Trump had the temerity to argue, “Courts may not
‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a
facially legitimate and bona fide reason.’” Well, that’s just not true, either: “courts may not ‘turn a
blind eye to the context in which [a] policy arose.’” When we prove
discrimination, we use inferences and circumstantial evidence – very few modern
bigots are foolish enough to speak openly of their animosity.

Fortunately, though, Trump is such a fool - or as the Court put it, more elegantly: “The record before
this Court is unique. It includes significant and unrebutted evidence of
religious animus driving the promulgation of the Executive Order and its
related predecessor.” Trump said he thinks “Islam hates us,” and that it’s “very
hard to separate” the religion from anti-American hatred, and articulated his
future policy: “[W]e can’t allow people coming into this country who have this
hatred of the United States. . . [a]nd of people that are not Muslim.” He later
revealed that he was “morphing” the Muslim Ban into a ban on particular
(almost-all-Muslim) territories, calling it “extreme vetting.”

The Government appropriately
cautions that, in determining purpose, courts should not look into the “veiled
psyche” and “secret motives” of government decisionmakers and may not undertake
a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40
(citing McCreary, 545 U.S. at 862). The Government need not fear. The
remarkable facts at issue here require no such impermissible inquiry. For
instance, there is nothing “veiled” about this press release: “Donald J. Trump
is calling for a total and complete shutdown of Muslims entering the United
States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President,
Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015),
available at https://goo.gl/D3OdJJ)).

Nor is there anything “secret”
about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive Order came to be. He
said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me
up. He said, ‘Put a commission together. Show me the right way to do it
legally.’” SAC ¶ 59, Ex. 8.

On February 21, 2017, commenting on
the then-upcoming revision to the Executive Order, the President’s Senior
Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions
meant to address the Ninth Circuit’s concerns in Washington,] you’re still
going to have the same basic policy outcome [as the first].” SAC ¶ 74.

These plainly-worded statements,
made in the months leading up to and contemporaneous with the signing of the
Executive Order, and, in many cases, made by the Executive himself, betray the
Executive Order’s stated secular purpose. Any reasonable, objective observer
would conclude, as does the Court for purposes of the instant Motion for TRO,
that the stated secular purpose of the Executive Order is, at the very least,
“secondary to a religious objective” of temporarily suspending the entry of Muslims.

Thank you, Judge Watson. Today I am
proud to be a civil rights lawyer in what is still the United States of
America, one nation, indivisible, with liberty and justice for all.

Wednesday, March 15, 2017

Salespeople paid on commission
are ingrained with an urgency to sell every waking minute, as exemplified by Alec
Baldwin’s notorious “Always Be Closing” speech in Glengarry Glen Ross. But here in California, that motto needs some
refining because two weeks ago a California Court of Appeal held that California-based
inside salespeople paid only on commission must also be paid separate and
additional compensation for ten-minute rest breaks.

[1]

In holding that an employer is
required “to separately compensate its sales associates for ... rest periods,” the
Court of Appeal relied principally on the plain text of Wage Order No. 7 and a
line of cases starting with Armenta v.
Osmose, Inc., which “held that employers cannot comply with minimum wage
obligations by averaging wages across multiple pay periods; instead, [t]he
minimum wage standard applies to each hour worked by [employees] for which they
were not paid.”

[2]

The Vaquero court traced the holding in Armenta forward to its logical extension in Bluford v. Safeway Stores, Inc.,where that court held that Safeway failed to meet its obligations to pay
its truck drivers for all hours worked because it only paid its drivers based
on “number of miles driven, the time when the trips were made, and the
locations where the trips began and ended,” instead of also separately
compensating its drivers for each ten-minute rest break they were entitled to
t

ake.[3] While the employer argued that its compensation system already incorporated payment for rest periods, the court was not persuaded because “[e]ven if that is so, it is akin to averaging pay to comply with the minimum wage law instead of separately compensating employees for their rest periods at the minimum or contractual hourly rate ... [which] is not allowed under California labor law.”[4]

Applying Armenta and Bluford to
inside salespeople, the Vaquero court
found that the employer’s compensation system for its salespeople failed to separately compensate for paid rest breaks (i.e., for non-productive time), and thus violated the California Labor Code requiring employers to pay for employees’ ten-minute rest breaks.[5] In particular, the Vaquero court reasoned that the draw system maintained by the employer – permitting the employer to claw back advances on future compensation if its salespeople did not exceed the minimum weekly pay – acted, “[a]t best ... [as] interest-free loans.”[6] As the Court explained, “when [the employer] paid an employee only a commission, that commission did not account for rest periods. When [the defendant] compensated an employee on an hourly basis (including for rest periods), the company took back that compensation in later pay periods. In neither situation was the employee separately compensated for rest periods.”[7] Accordingly the Vaquero court concluded that such a commission system “effectively reduces either rest period compensation or the contractual commission rate, both of which violate California law.”[8]

The Vaquero court noted that its decision would
not stand as an obstacle to an employer using a lawful commission-based
compensation system to incentivize its salespeople, nor would it “lead to hoards
of lazy sales associates” because, like the company in Vaquero, employers can always require employees to “meet minimum
sales expectations” and subject ineffective salespeople to “disciplinary measures up to and including termination.”[9] In other words, California salespeople can continue to always be closing, so long as their employers pay them separately for their ten-minute rest breaks.[10]

Bryan Schwartz Law previously blogged about a related case last year, which held that the same employer could not escape classwide liability for maintaining a compensation policy that failed to provide for minimum and overtime wages and related compensation when employees performed non-exempt work such as cleaning up the employer's stores or moving the employer's furniture products.

Bryan Schwartz Law also previously blogged about an important California Supreme Court decision issued last December, Augustus v. ABM Security Services, Inc., which clarified that an employer cannot require an employee to be on call during his or her ten-minute rest break without receiving an additional premium payment in the event that the employer interrupts the employee's ten-minute rest break (as explained by the California Supreme Court: "A rest period, in short, must be a period of rest.").

If you are an inside salesperson
in California who is paid solely on commission without separate compensation
for your ten-minute rest break, please contact Bryan Schwartz Law.

[5]
Labor Code § 226.7(b); Cal. Code Regs. tit. 8, § 11070(12)(A) (“Industrial Wage
Commission Order No. 7”) (“Authorized rest period time shall be counted as
hours worked for which there shall be no deduction from wages.”)